Articles

The costs of the collaborative process vs traditional litigation.

Frequently, when prospective clients first visit Kales & Kales, they come to us overwhelmed, lost, confused or, as is often the case, some combination of the three. The first step our attorneys take, to ease the anxiety associated with divorce, is to outline process options with each prospective client and educate them about what they should expect during each of the processes. Perhaps the starkest contrast occurs when one analyzes the costs of traditional litigation and compares it with the costs of the Collaborative Process.

Traditional Litigation

In a traditionally litigated case, the proverbial starter gun is fired when one party files a Complaint for Divorce. The other party will file an Answer. A trial date will be assigned. Between the filing of the Complaint for Divorce and the trial date, however, the real substance of a traditionally litigated case is formed during a process called discovery.

During discovery, each side may propound, upon the other, the following: Interrogatories (a series of written questions which require the receiving party to answer them in writing under oath); Requests for Production of Documents (wherein one party requests the other provide them documents. Requested documents might include anything from bank statements to the children’s report cards to emails between the spouses or between the spouses and third-parties); and Requests for Admission (a series of statements written by the propounding party which the receiving party must either admit or deny).

Furthermore, depositions (oral testimony of a party or witness, before a court reporter and under oath) may occur during the discovery phase. The more forms of discovery the spouses and attorneys use, the higher the costs, in fees charged to the client, in the client’s time and, often, to emotional well-being. Because there is often overlap of interrogatories or requests for production, frequently both spouses engage in gathering the same information.

Also, during discovery, depending on the complexity of the facts, experts may be retained and expert reports may be prepared. Experts may be hired by both sides on any number of issues, including, without limitation, in order to value a company, to determine the value of real and/or personal property, to do a child custody evaluation and to establish a parenting plan, and/or to determine whether a party is employable and whether a party is under-employed based upon that party’s education and abilities, etc. Experts tend to be expensive, and the more experts that are hired, the higher each spouses costs go.

Upon the conclusion of discovery, the spouses may engage in settlement conferences. The goal for the attorneys, at these meetings, though, for the most part, is to “win” as much as possible for his or her client. To achieve this end, attorneys frequently engage in unpleasant litigation strategies or tactics—including saber rattling, like: “If you don’t see things my way, we’ll just see what the judge has to say;” or “This meeting is a waste of time. We’ll just see you in Court.”

If negotiations fail, and settlement cannot be reached, the spouses head to trial. Obviously, a trial involves attorney and staff preparation time, the trial itself, and related expenses. At this point, at least in Fairfax County, each spouse can expect to have incurred north of $40,000 to $50,000 each in attorney’s fees, expert fees, and other expenses.

The Collaborative Process

In the Collaborative Process, the threat of court is taken off the table. The spouses are free to set their own timetable. Instead of immediately jumping into the discovery process, the spouses gather information and share the information they’ve gathered openly. There are no costs associated with attorneys drafting discovery. Certainly clients will have to gather financial documents and any documents relevant to their case (which takes time); and certainly attorneys and financial neutrals (if retained) will have to be familiar with those documents (which takes time and, therefore, costs money), but as there is no formal discovery, the cost of this phase of a case is greatly diminished.

In the Collaborative Process, experts are retained, but they are neutral and hired jointly, and just one is hired per subject; e.g., one home appraiser, one business valuation expert, etc. Experts are not dueling, hired guns, but neural evaluators, who are there to help both spouses and their families. Hence, although there are expert costs, the costs rarely approach those seen in most traditionally litigated case.

In the Collaborative Process, there are meetings, like in litigated cases, but the spouses, and their attorneys, are all working diligently on settlement, brain storming and exploring options to find solutions that are best for both spouses and, when, applicable, their children. This approach, of spouses working cooperatively, the vast majority of the time, is significantly less expensive than litigation, both financially and emotionally.